Kerala High Court
Msc Agency (India) Private Limited vs The Chairman
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY,THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938
WP(C).No. 17587 of 2005 (R)
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PETITIONER :
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MSC AGENCY (INDIA) PRIVATE LIMITED
1ST FLOOR(B), DARRAGH SMALL CENTRE, XXIV/1469 A,
5TH CROSS ROAD, WILLINGTON ISLAND, COCHIN-682003,
REP. BY ITS BRANCH MANAGER, MR.JOHN K.NELLUVELY,
AGED 41 YEARS, S/O.LATE KUNJU PAILO.
BY ADVS.SRI.V.J.MATHEW
SRI.P.P.RAJESH
SRI.BIJISH B.TOM
SMT.BABY SONIA
RESPONDENT(S) :
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1. THE CHAIRMAN
COCHIN PORT TRUST
W/ISLAND, COCHIN - 9.
2. BOARD OF TRUSTEES
COCHIN PORT TRUST, W/ISLAND
COCHIN - 9, REP. BY ITS CHAIRMAN.
3. THE COMMISSIONER OF CUSTOMS (IMPORTS)
CUSTOMS HOUSE, W/ISLAND
COCHIN -9.
4. UNION OF INDIA
REP. BY ITS SECRETARY
MINISTRY OF FINANCE, NEW DELHI.
5. MR. IRUDAYARAJ
EMPOWERMENT OF DOWN TRODDEN SOCIETY
37, VASANTHA NAGAR
LAIGUDI- 620601.
...2/-
WP(C).No. 17587 of 2005 (R) -2-
6. CHRISTIAN MEIER
HOHLENGRUNDSTR 2, D - 77728
OPPENAU-LIERBACH, ANTWERP
BELGIUM. (*DELETED)
7. INDIA GATEWAY TERMINAL PVT. LTD.,
P.O. BOX 525, SUBRAMANIAN ROAD
W/ISLAND, COCHIN - 682 003.
*R6 DELETED AS PER ORDER DATED 15/11/05 IN IA 16535/05.
R1 &,R2 BY ADVS. SRI.ABRAHAM JOSEPH MARKOS
SRI.V.ABRAHAM MARKOS
SRI.BINU MATHEW
SRI.TOM THOMAS (KAKKUZHIYIL)
SRI.ISAAC THOMAS
R3 & R4 BY ADV. SRI.JOHN VARGHESE, ASSISTANT SG
SRI.ABRAHAM THOMAS, CGC
R5 BY ADVS. SRI.PAUL MATHEW (PERUMPILLIL)
SRI.JOBY JACOB PULICKEKUDY
SRI.ANIL GEORGE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 31-05-2016, ALONG WITH WP(C). NO.26724/2005 &
WPC. 29344/2005, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mn
...3/-
WP(C).No. 17587 of 2005 (R)
APPENDIX
PETITIONER'S EXHIBITS :
EXT.P1 THE TRUE COPY OF THE BILL OF LADING NO. MSCUA 1204682 DTD.
5/11/2003.
EXT.P2(a) THE TRUE COPY OF THE CARGO ARRIVAL NOTICE DTD. 9/12/2003
ISSUED BY THE PETITIONER TO THE 5TH RESPONDENTS.
EXT.P2 THE TRUE COPY OF THE CARGO ARRIVAL NOTICE DTD. 23.12.2003
ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT.
EXT.P3 THE TRUE COPY OF THE LETTER DATED 30/3/2004 ISSUED BY THE
PETITIONER TO THE IST RESPONDENT.
EXT.P4 THE TRUE COPY OF THE LETTER DATED 19/4/2004 ISSUED BY THE
IST RESPONDENT TO THE PETITIONER.
EXT.P5 THE TRUE COPY OF THE LETTER DTD. 26/8/2004 ISSUED BY THE
PETITIONER TO THE IST RESPONDENT.
EXT.P6 THE TRUE COPY OF THE NOTICE DTD. 13/10/2004 ISSUED BY THE IST
RESPONDENT TO THE 5TH RESPONDENT.
EXT.P7 THE TRUE COPY OF THE LETTER DTD. 5/11/2004 ISSUED BY THE
PETITIONER TO THE IST RESPONDENT.
EXT.P8 THE TRUE COPY OF THE LIEN NOTICE DATED 21/4/2005 ISSUED BY
THE PETITIONER TO THE 1ST & 2ND RESPONDENT.
EXT.P9 THE TRUE COPY OF THE ORDER IN CMP NO. 6743/02 IN WRIT APPEAL
NO. 2567/2002 DTD. 3/12/2002.
EXT.P10(a) THE TRUE COPY OF THE BILL DTD. 28/4/2005 ISSUED BY THE IST &
7TH RESPONDENT.
(Contd...)
WP(C).No. 17587 of 2005 (R)
EXT. P10(b) THE TRUE COPY OF THE BILL DTD. 28/4/2005 ISSUED BY THE IST &
7TH RESPONDENT.
EXT.P11 THE TRUE COPY OF THE TAMP ORDER NO. TAMP/86/99-MISC. DTD.
19/7/2000.
EXT.P12 THE TRUE COPY OF THE RELEVANT PAGE OF THE LICENSE
AGREEMENT ENTERED INTO BETWEEN THE IST RESPONDENT AND
THE 7TH RESPONDENT.
EXT.P13 THE TRUE COPY OF THE ORDER DTD. 13/9/2005 IN CASE
NO. TAMP/70/2003/COPT PASSED BY TAMP.
EXT.P14 THE TRUE COPY OF THE LETTER DT. 21/11/2005 ISSUED BY THE
PETITIONER TO THE 7TH RESPONDENT.
EXT.P15 THE TRUE COPY OF THE LETTER DT. 7/12/2005 ISSUED BY THE 7TH
RESPONDENT TO THE PETITIONER.
EXT.P16 THE TRUE COPY OF THE LETTER DTD. 8/12/2005 ISSUED BY THE
PETITIONER TO THE 7TH RESPONDENT.
RESPONDENT'S EXHIBITS : NIL
//TRUE COPY//
P.A. TO JUDGE
Mn
A.MUHAMED MUSTAQUE, J.
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W.P.(C).No. 17587, 26724 and 29344 of 2005
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Dated this the 31st day of May, 2016
J U D G M E N T
The petitioners are carrier/container owners. The importer failed to clear the goods from the Port Area. This resulted in claiming ground rent charges from the petitioners. The sole question arises in these writ petitions is whether the petitioners are having any lien over the ground rent charges claimed by the Port Authority.
2. The petitioners refer to Sec.150 of the Customs Act and submit that the ground rent when levied by the Port Authorities can be treated as other charges in terms of Sec.150 (2) (b) and therefore, they are entitled to exercise lien.
3. It is to be noted under the Major Port Trust Act, a lien is provided for ship owners for freight and other charges. Sec.60 of the Major Port Trust Act reads as follows:
"Ship-owner's lien for freight and other charges.- W.P.(C).No. 17587, 26724 and 29344 of 2005 - : 2 :-
(1) if the master or owner of any vessel or his agent, at or before the time of landing from such vessel any goods at any dock, wharf, quay, stage, jetty, berth, mooring or pier belonging to or in the occupation of a Board, gives to the Board a notice in writing that such goods are to remain subject to a lien for freight or other charges payable to the ship-owner, to an amount to be mentioned in such notice, such goods shall continue to be liable to such lien to such amount.
2) The goods shall be retained in the custody of the Board at the risk and expense of the owners of the goods until such lien is discharged as hereinafter mentioned; and go down or storage rent shall be payable by the party entitled to such goods for the time during which they may be so retained.
3) Upon the production before any officer appointed by the Board in that behalf of a document purporting to be a receipt for, or release from, the amount of such lien, executed by the person by whom or on whose behalf such notice has been given, the Board may permit such goods to be removed without regard to such lien, provided that the Board shall have used reasonable care in respect to the authenticity of such document."
4. On a close reading of Sec.60 of the Major Port Trusts Act, it would indicate that a lien can be exercised by the ship owner in respect of the charges payable to the ship owners by the agent or consignee. Nowhere refers to any statutory levy levied by the Port Authorities. If any statutory levies or rent claimed by the statutory authorities from the petitioners, which was payable by the consignee or agent, the same cannot be claimed as a lien under Section 60. The other charges as referred in Sec.60 has to be understood in the same class of freight referred therein, which means any W.P.(C).No. 17587, 26724 and 29344 of 2005 - : 3 :-
charges payable based on the contract entered between the ship owners and consignee or agent. It cannot in no way, include any amount paid by the ship owner under compulsion on account of the non clearance of the goods by the agent or consignee.
5. Section 150 of the Customs Act provides the appropriation of the amount received for the goods sold. This provision is related to sale of abandoned goods. The priority of the appropriation is referred in Sub Section (2) of Section
150. It is appropriate to refer Section 150 in this context.
"150. Procedure for sale of goods and application of sale proceeds.-
(1) Where any goods not being confiscated goods are to be sold under any provisions of this Act, they shall, after notice to the owner thereof, be sold by public auction or by tender or with the consent of the owner in any other manner.
(2) The proceeds of any such sale shall be applied-
(a) firstly to the payment of the expenses of the sale,
(b) next to the payment of the freight and other charges, if any, payable in respect of the goods sold, to the carrier, if notice of such charges has been given to the person having custody of the goods,
(c) next to the payment of the duty, if any, on the goods sold,
(d) next to the payment of the charges in respect of the goods sold due to the person having the custody of the goods,
(e) next to the payment of any amount due from the owner of the goods to the Central Government under the provisions of this Act or any other law relating to customs, and the balance, if any, shall be paid to the owner of the W.P.(C).No. 17587, 26724 and 29344 of 2005 - : 4 :-
goods.
[provided that where it is not possible to pay the balance of sale proceeds, if any, to the owner of the goods within a period of six months from the date of sale of such goods or such further period as the Commissioner of Customs may allow, such balance of sale proceeds shall be paid to the Central Government.]"
6. The reference to the freight and other charges referred therein can be only relatable to the lien that could be exercised by the ship owner if the notice was given to such authority. Therefore, what is referred in Sec.150(2) is protected as a lien under Section 60.
7. This Court is of the view that the amount paid under compulsion for non clearance of the goods by the consignee or agent cannot be considered for exercise of lien which is statutorily provided in terms of Sec.60 of the Major Port Trusts Act. The statutory lien that could be exercised by the petitioners cannot be extended to any levy paid by the petitioners under compulsion on behalf of consignee or agent. No doubt, if the amount is otherwise recoverable, the petitioners can approach civil court and seek appropriate remedy as against the consignee and also can claim such W.P.(C).No. 17587, 26724 and 29344 of 2005 - : 5 :- amount if otherwise available, as excess with the respondent. This Court need only consider the statutory claim now preferred by the petitioners. The civil remedy which the petitioners can claim cannot be considered and redressed as statutory right unless, statute recognize such rights. Therefore the petitioners has to work out such right independent of statutory provision. In view of the fact that the statutory provisions as above do not indicate any lien for such amount paid, this Court is of the view that the petitioners cannot claim the amount under Section 150(2) of Customs Act. As has been noted above the petitioners are free to work out their civil remedy in appropriate manner in a competent civil Court. If the petitioners seek to approach the civil court, certainly the time taken before this Court for the purpose of limitation shall be excluded.
8. The petitioners claim that the other issues in the writ petition is covered by the judgment of this Court in APL (India) Pvt. Ltd. (M/s.) v. Chairman, Cochin Port Trust and Others [2011 (4) KHC 236]. The petitioners also W.P.(C).No. 17587, 26724 and 29344 of 2005 - : 6 :-
admit that a civil appeal is pending before the Hon'ble Supreme Court as against the above judgment. In view of the above, all other issues are left open and the petitioners are free to work out the relief depending upon the out come of the civil appeal.
Sd/-
sab A.MUHAMED MUSTAQUE, JUDGE